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The President's claim to be legal chief presents still another kind of problem in the current case against the White House plumbers who staged the break-in at the office of Dr. Lewis Fielding, Daniel Ellsberg's psychiatrist. Federal Judge Gerhard Gesell, who sits in Washington, D.C., says that he may dismiss the case if Nixon fails to comply with subpoenas from his court. Such a failure could infringe a defendant's right to any evidence the Government may have that could be of use to him.
Possible Solution. There is even a precedent ready at hand for Gesell's view. Government misconduct—including both the break-in and slow production of other evidence that the defense was entitled to see—caused dismissal of the prosecution of Daniel Ellsberg; it did not matter that the attorneys who were prosecuting Ellsberg were not connected themselves with all the improper activity. Trouble is, says Berkeley Criminal Law Professor Phillip Johnson, "there is no legal doctrine developed to deal with a situation where evidence is in the hands of the chief of Government and where he and the prosecutor, to say the least, do not share a common interest. I would hope the courts would be realistic enough to say this would not be grounds enough to dismiss."
One possible solution for many of the legal problems involved in the President's position as legal chief has been suggested by Harvard's Bator. Why face such difficulties at all, he asks, in a situation "where the President himself should be deemed disqualified by personal interest?" If a court were to rule that the creation of the special prosecutor meant, in fact, that the President was excusing himself from the case, it would merely be acknowledging a practical reality. Even Yale's Bickel, while maintaining the technical correctness of the presidential argument in Jaworski's cover-up case, has concluded that the President's actions and statements mean that Nixon can no longer use the defense of being the U.S. legal chief when he is charged with obstruction of justice. Says Bickel: "The President who maintains the innocence of his severed right and left arms—Haldeman and Ehrlichman—is not speaking as the chief law-enforcement officer. For prosecutors do not go forward with indictments of people who they believe are innocent." Bickel, who is convinced that the President is indeed chief law-enforcement officer, is equally certain that by his behavior Richard Nixon has stripped away for good "the fiction of the President as chief law-enforcement officer in the Watergate case."
*The Government as a railroad customer was suing the Interstate Commerce Commission to upset an I.C.C. ruling that meant higher shipping costs. The Attorney General thus appeared for the Government as both plaintiff and defendant. And Justice Hugo Black concluded for the Court that "the established principle that a person cannot create a justiciable controversy against himself has no application here."